EXHIBIT 10.1
AMENDED AND RESTATED RETENTION AGREEMENT
This AMENDED AND RESTATED RETENTION AGREEMENT (the "Agreement") is made
effective this 15th day of April, 2004, by and between Photo Control Corporation
(the "Company") and Xxxxxx Xxxxxxx ("Employee").
RECITALS
A. Employee and Company entered into that certain Retention Agreement
dated March 12, 2004 (the "Original Agreement") and now desire to make
certain changes to the Original Agreement.
B. Employee is currently employed as President with the Company.
C. The Company wants to recognize Employee's past service with the Company
and provide him with a level of financial security as the Company
explores strategic alternatives.
D. The Company also believes it is in its best interests of the Company
and its shareholders to retain the services of Employee for a specific
period of time.
E. The Company and Employee desire to enter into this Agreement.
AGREEMENT
In consideration of the above recitals and the promises set forth in
this Agreement, the parties agree as follows:
1. VESTING OF RETIREMENT BENEFITS. For the reasons set forth above, the
Company hereby amends the Company's Executive Salary Continuation Plan
dated August 9, 1985, as amended (the "Plan"), as follows:
(a) Upon Employee's termination of his employment with the Company for any
reason, Employee will be entitled to immediately begin receiving the
monthly installment payments that the Plan currently provides would be
paid beginning at age 67 if Employee would have continued in employment
with the Company until the age of at least 65. In other words, this
amendment to the Plan entitles Employee to receive an annual benefit of
$48,534 for 15 years paid on a monthly basis, beginning the month after
the month of termination.
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(b) The amendment to the Plan set forth in this Agreement applies only to
the Employee.
2. RETENTION SEVERANCE PAY AND BENEFITS.
(a) If Employee satisfies all of the conditions of paragraph 3(b) below, the
Company shall provide Employee the following retention severance pay and
benefits upon a termination of his employment:
(i) Severance pay equal to four (4) months of Employee's gross monthly base
salary at the time of termination, which severance pay will be paid to Employee,
at the Company's election, either in a lump-sum amount or in installments in
accordance with the Company's then existing regular payroll practices; and
(ii) For a period of eighteen (18) months following Employee's date of
termination (the "Premium Payment Period"), the Company shall pay the monthly
health, dental and life insurance premiums for Employee to continue his
insurance under the Company's group plans subject to these plans' eligibility
requirements. The Premium Payment Period shall run concurrently with Employee's
COBRA and state benefits continuation period. In order to receive these
benefits, Employee must execute all documentation necessary to elect insurance
continuation.
(iii) Transfer of the Company vehicle then driven by Employee at no cost to
Employee other than income tax and employee payroll taxes.
(b) Employee shall receive the retention severance pay and benefits described in
paragraph 3(a) above only if all of the following conditions are satisfied:
(i) Employee complied with any request by the Company or its successor to remain
employed until June 1, 2004;
(ii) Employee's employment with the Company or its successor is terminated by
the Company or voluntarily by Employee for a reason other than one set forth in
paragraph 3(c) below; and
(iii) Employee signs a Separation and Release Agreement at the time of
termination in providing for the following: (a) Employee's general release of
the Company, any of its respective predecessors, subsidiaries, affiliates,
successors, assigns, and any of their respective current and former officers,
agents, directors, employees, independent contractors, shareholders, attorneys,
accountants, insurers, representatives; (b) Employee's return of all corporate
property in his possession;
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(c) nondisparagement of the Company and any successor and their respective
representatives; (d) confidentiality of the terms of the Separation Agreement;
and (e) affirmation of any continuing obligations of Employee, such as, but not
limited to non-competition or confidentiality obligations.
(c) Notwithstanding the provisions of any part of paragraph 2 above, Employee
shall not be entitled to any retention severance pay or benefits under paragraph
3(a) above in the event Employee is terminated for any of the following reasons:
(i) Employee dies; or
(ii) Employee refuses to comply with the request of the Company or its successor
that he remain employed until June 1, 2004, unless Employee's refusal to remain
employed until June 1, 2004 is due to his work location being relocated to a
location that is more than fifty (50) miles from Employee's current work
location.
3. TAXES. Any payments made to Employee pursuant to this Agreement shall
be subject to the normal withholdings which the Company is obligated by law to
deduct, or which the Company in good faith believes it is obligated by law to
deduct.
4. NO GUARANTY OF FUTURE EMPLOYMENT. Nothing in this Agreement shall be
deemed to be a contract of employment for a specified period of time. The terms
of Employee's employment shall remain unmodified, and unless otherwise agreed to
in a separate written agreement between Employee and the Company signed by both
of them, Employee's employment with the Company shall remain at-will.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the Company, its Successors and Assigns, and the Company
shall require any Successors and Assigns to expressly assume and agree to
perform the Company's obligation under this Agreement. Neither this Agreement
nor any right or interest thereunder shall be assignable or transferable by
Employee, his/her beneficiaries or legal representatives, except by will or by
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by the Employee's personal representative.
6. MISCELLANEOUS.
(a) INTEGRATION. This Agreement embodies the entire agreement and understanding
among the parties relative to Employee's right to receive retention pay or
benefits. This Agreement supersedes
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any and all prior retention agreements between the parties, and any other
agreements between the parties relating to the subject matter herein.
(b) MODIFICATION AND TERMINATION. The terms and conditions of this Agreement may
be amended or terminated only upon written agreement signed by the Company and
Employee.
(c) APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of Minnesota.
(d) COUNTERPARTS. This Agreement may be executed in several counterparts and as
so executed shall constitute one agreement binding on the parties hereto.
(e) SEVERABILITY. The invalidity or partial invalidity of any portion of this
Agreement shall not invalidate the remainder thereof, and said remainder shall
remain in full force and effect to the maximum extent compatible with then
applicable law.
(f) RECITALS AND HEADINGS. The recital and section headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date herein first above written.
Date: April 26, 2004 PHOTO CONTROL CORPORATION:
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By: /s/ Xxxx Xxxxxx
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Its: CEO
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EMPLOYEE:
Date: April 26, 2004 /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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